- (1.) PRAKASH Krishna, J. The petitioner, a Society, registered under the Societies Registration Act, in October, 2001 submitted that its bid for allotment of a parcel of land bearing No. D- 13, Sector 44, NOIDA under Group Housing Scheme No. GHP/03/2001. Petitioner's bid for Rs. 4, 92, 23, 702/- was accepted by the respondent authority being the highest one. The cost of the land was charged at the rate of Rs. 9, 600/- per Sq. Mtr. The total area of the said piece of land, as represented by the Noida Authority was measuring 5127. 47 Sq. Mtrs. and was marked and delineated. It is no longer in dispute that the petitioner Society has paid the requisite amount as per the demand of the Noida Authority in respect of the aforesaid plot of the aforesaid area. Subsequent to the finalization of the deal, on 23. 4. 2002 physical possession of the said plot was also handed over by the Noida Authority to the petitioner Society. In the letter delivering the possession, the area of the plot was again mentioned as 5127. 47 Sq. Mtrs. . The petitioner Society got the construction plan sanctioned for the Group Housing Complex which was also approved by the respondent authority on 17. 6. 2002. The constructions and the development of the plot were taken accordingly and on 11. 7. 2006 completion certificate and no dues certificate as well were issued by the respondent authority to the petitioner Society. It was done after making a spot inspection and the inspection report is dated 30. 5. 2006. In all 75 flats were constructed by the petitioner Society and they have been allotted to its members. All of sudden on 27. 8. 2007, as stated in the writ petition the petitioner Society was slapped with a demand notice of Rs. 1,09, 64, 520/- issued by the respondent authority vide annexure -1 to the writ petition. On actual measurement it was found that the area of the said piece of land is 5, 304. 01 Sq. Mtr. instead of 5, 127. 47 Sq. Mtrs. . The impugned demand was raised as per policy of the respondent authority to charge the price of the excess area at the prevalent market value on the date of issue of the notice together with the interest from the date of actual allotment to the date of actual notice. Thus, a sum of Rs. 51, 35, 730/- was demanded towards the interest which is included in the aforesaid demand of Rs. 1, 09, 64, 520/ -. The said notice was objected to by filing a letter dated 4. 2. 2008 but in vain. By the letter dated 22. 2. 2008 the stand of the petitioner Society that it is not liable to pay any further sum, was rejected. Being aggrieved by the said demand the present writ petition has been filed claiming the following reliefs:- (I) to issue a writ of certiorari and any other appropriate order or directions thereby quashing the demand letters dated 27. 8. 2007 and 22. 2. 2008 (Annexure-1 and Annexure-2 issued by Respondent Authority demanding Rs. 1,09,64,520/- in respect of Plot No. D-13, Sector-44, Noida; (II) to direct the Respondent Authority not to take any adverse action in respect of the above plot of land pursuant to the impugned demand letters; and in the alternative (III) to direct the Respondent Authority to carry out a fresh survey of the Housing Complex of the Petitioner Society built on plot No. D-13, Sector 44 Noida by qualified and competent officials by giving due notice to the Petitioner Society and in the presence of the its representatives; (IV) to direct the Respondent Authority to charge the cost of additional land, if found after the fresh survey, @ Rs. 9,600/- without any interest thereon; (V) to pass any other appropriate order or directions as the Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.
(2.) IT has been averred in the writ petition that besides the fact that petitioners have already paid the amount as demanded by the respondent authority as per mutual terms agreed upon and also the fact that a lease deed has been executed in favour of the petitioner Society, the petitioner Society was not associated in any manner while making the actual measurement whereby it was found that the area measuring 176. 63 Sq. Mtrs. has been handed over in excess to the petitioner Society. A counter affidavit on behalf of the contesting respondents sworn by Shri S. C. Verma, Assistant Law Officer wherein the allotment of a piece of land measuring 5127. 47 Sq. Mtrs to the petitioner society has not been disputed, has been filed. It has been mentioned therein that it subsequently transpired that the petitioner on spot had encroached upon a surplus area measuring 176. 63 Sq. Mtrs in respect of which neither any allotment was made in favour of the petitioner nor the petitioner ever paid any consideration. In this state of affair, according to the counter affidavit, only two courses were available to it i. e. the first option was to have evicted the petitioner from the surplus area and the second option was to regularise the surplus land measuring 176. 63 Sq. Mtrs. by charging the current price of land with interest. If the petitioner has not agreed to the second course which has been followed by giving the impugned notice, authority will be willing to withdraw the settlement of the land in favour of the petitioner and follow the other course available of evicting it from the surplus land. The fact is that the possession of the petitioner over an area of 176. 63 Sq. Mtrs. is without any right, title or interest. The averment of the petitioner that the plot was never surveyed carried in its presence, has been denied with the allegation that at the time of the survey the residents of the petitioner society were present and the same was within their knowledge, vide para 7 of the counter affidavit. Also in para 8 it has been stated that the allegation that the petitioner society was never aware about the physical survey conducted by the authority is incorrect and denied. In the rejoinder affidavit filed by the petitioner society, the averments made in the writ petition have been reasserted and the allegation that the survey of the plot was carried out in the presence of the residents of the petitioner society is disputed.
(3.) HEARD the learned counsel for the parties and perused the record. In the para 3 of the writ petition the following questions have been posed for consideration and adjudication by this Court:- I. Whether the Respondent Authority can be permitted to raise a highly belated but huge demand against the Petitioner Society for additional land area, whereas in last six years it has repeatedly confirmed the smaller size of the land in its letters/communications including the allotment letter, possession and lease deed? II. Whether the impugned demand of Rs. 1. 09 Crores can be raised by the Respondent Authority after the expiry of six years from the date of the allotment of the plot on the ground that the plot allotted to the Petitioner Society is bigger in size ? III. Whether the Respondent Authority is justified in raised the aforesaid arbitrary demand on the basis of a survey report conducted without any knowledge of and intimation to the Petitioner Society ? IV. Whether the Respondent Authority having repeatedly maintained the size of the plot as 5, 127. 47 Sq. Mtrs. in their different communications including the possession letter, can be permitted on the basis of a unilateral survey report to claim that the size of the plot is bigger and Petitioner Society is liable to pay the cost with interest? V. Whether the Respondent Authority is justified in demanding the cost of the additional land area, whereas due to such delayed intimation, the Petitioner Society has suffered a huge loss of not using the said additional area which could be utilized for constructing more flats which would have fetched the Petitioner Society a substantial amount ? VI. Whether the Respondent Authority can apply the present land rate in respect of the part of the plot which was purchased by the Petitioner in auction in 2001 and no intimation was given to the Petitioner about the bigger size of the plot in next six years ? VII. Whether in the absence of any lapse, negligence or omission on the part of the Petitioner Society, the Respondent Authority is entitled to claim the cost of the additional area, even if it is there, at the current land rate or also to claim interest from the date of the allotment? VIII. Whether the Respondent Authority can insist on its arbitrary and illegal demand without conducting the physical survey of the entire plot in the presence of and to the satisfaction of the Petitioner Society? IX. Whether the Respondent Authority is justified in rejecting the representation of the Petitioner Society submitted against the impugned demands, by passing a mechanical and non speaking order which completely ignores and overlooks the grounds and contentions of the Petitioner Society raised against the said illegal demand? However, in the course of argument Shri Shashi Nandan, the learned senior counsel appearing for the petitioner has confined is only on the point that the petitioner society has paid the entire consideration for 5127. 47 Sq. Mtrs. and there is no material to show that the petitioner society is in possession of an area in excess thereof. So far as the alleged survey is concerned, the said survey is nothing but a waste paper as the same was not carried in the presence either of the petitioner society or its office bearers or of its any of the members. Elaborating the argument he submits that in the lease deed which is the title deed of the petitioner society, the area transferred to the petitioner society has been described by the boundaries as well as by measurements with the rider that the said area "may be a little more or less". This according to him signifies that the area was not mentioned with meticulate precision and the executants of the document intended that if there is a slight variation in the area either side, the land as described by the boundaries has been demised by the respondents in favour of the petitioner society for total consideration of Rs. 4, 92, 23, 712/ -.;